Article 6 - Aspects of a fair trial

Blanket immunity

The idea that a certain group cannot be taken to court e.g. Diplomatic immunity

Hill v CC of West Yorks

C’s child was the final victim of the Yorkshire ripper and she alleged that the police had enough evidence to make an arrest that would of saved her child’s life. The case never got to court as the police, at the time, had blanket immunity from civil cases in the interest of protecting their ability to do their jobs.

Osman v UK

The police were warned dozens of times to protect a child from a teacher who had become obsessed with him but they failed to act and the teacher ended up killing c’s dad with a shotgun. The ECtHR found that blanket immunity that meant no civil cases could have a fair trial was unacceptable but limits that balanced rights were ok.

Z & Others v UK

5 children were left in horrible neglect by the council who failed to act. Cs sued the council but there were protections that meant that the issue lost at trial. This was ruled to be fine as limits that balanced rights were fine and a fair trial did happen it just also happened that they lost

T & V v UK

If the trial involves children it needs to be adjusted to fit their needs and their comprehensive ability. This could include giving them more time and allowing their lawyers to be closer to them during proceedings

Rules for children giving evidence - Re v W

• A child should only be made to give evidence when it is key to obtaining a fair trial

• Courts must balance the advantages of bring a child to court against their welfare

• Must regard for the wishes, needs, ability, of the child and the gravity of the allegations when making considerations

Equality of Arms

This is the idea that neither side should be disadvantaged by not having access to legal assistance. This can only be helped to an extent but at the extreme ends it violates article 6.

Steel & Morris v UK (McLibel case)

C’s gave out flyers making claims that McDonald’s food was harming people’s health and the enviroment. They were then taken to court for libel where they were given no legal aid as it was a civil trial. Over 300 days the trial went over huge amounts of complex evidence to disprove their claims. McDonald’s had access to a large team of lawyers all able to cover the workload easily and with legal knowledge the claimants lacked. The discrepancy was so vast here the ECtHR ruled it was a violation of article 6.

McVicar v UK

C was a journalist sued for claiming an Olympic sprinter was using PEDs. C could not get a lawyer for this libel case as it was a civil case and he lost. However, here the evidence was straightforward as C was simply unable to secure an eyewitness to prove his claims and C was an experienced journalist and well educated therefore making him capable of handling the facts of the case. No violation, legal aid for civil cases is not a human right.

Evidence gathering rules S.76 of PACE

• Evidence must be gained voluntarily and reliably

• If PACE is violated the evidence can be excluded

• Entrapment is not allowed - Where the police actively encourage people to commit crimes so they can arrest them AGs ref (No.3 of 2000)

Hearsay evidence R v Horncastle

This is where a witness reports what someone else said. This is an issue because it does not allow the accused to respond. However, sometimes it needs to be admitted so it is a balance of interest. It is allowed but the court cannot hear an entire case built upon hearsay evidence.

Disclosure of evidence

The prosecution must disclose all evidence it has against the defendant so they can properly respond. Normally this is not an issue but in national security cases it becomes harder.

Appearance in court

Article 6 recognises that the accused should be physically present at their trial to see justice being done and observe witnesses. However, it can be done without them if they refuse to come or if there is a national security reason they should not be brought into attendance.

Pelissier v France

Here C had been under investigation for 5 and a half years without being given his trial. The court ruled that the investigation had no reason to take this long as it was not too complicated and this was completely against C’s human rights.

Independence from legislature - Independent and impartial tribunal rules

The parliament or equivalent cannot have a role or influence on the judiciary

Independence from executive - Independent and impartial tribunal rules

The president or equivalent should not have a role or influence in the judiciary. Constitutional reform act removed HoL to protect this and judges are now chosen by an independent commission.

Independence from case - Independent and impartial tribunal rules

The judge on the case should have no stake in the result and should have no links to either side. e.g Pinochet case and Fracking Three

Security of tenure - Independent and impartial tribunal rules

The judge cannot be removed easily meaning they cannot be coerced by higher ups into making a decision they do not agree with. Judges are chosen by judicial appointments committee meaning politics not included.

Sander v UK

D was Asian on trial for fraud. A private note was passed to the judge from a juror stating that at least two other jurors had been making openly racist jokes and comments about Asian people and the writer was worried the jurors would convict based off of the defendant’s ethnicity.

The judge did not dismiss the jury. He read the note to the jury and reminded them of their oath to try the case based off evidence without bias. He asked the jury to reflect and let him know if they can continue impartially.

The next morning, the judge received two letters. One was collective letter signed by all twelve jurors stating that they utterly refute the claims of racism and are offended by them. The second came from a single juror who explained he might have told a racist joke and apologised.

The defendant was convicted
Here this was a breach of article 6 as there was firm evidence of racism and the jury wasn’t dismissed

Gregory v UK

D was Black and on trial for robbery. After the jury retired to consider their verdict, they passed a note to the judge saying ‘jury showing racial overtones. 1 member to be excused’.

The judge called the jury back into court and explained that jurors come from different walks of life with different preconceived ideas and thoughts but stressed that their duty was to decide the case only on the evidence and nothing else. He emphasised that prejudice of any form must be put out of their minds and reminded them of the solemn oath they had taken.

convicted. No breach as the judge’s reminder was enough to clear the notion of racism.

Impact of media coverage on the jury

R v Taylor and Taylor

The scale and intensity of media coverage made the jury unable to reliably neutralise bias

Jury equity

juries can acquit on the basis of morals

Hanif & Khan v UK - Rules for police officers on juries

C’s were arrested for drugs offences. A police officer selected for their jury, which in itself is fine, was friends with the arresting officer having worked with him for 10 years. This bias by connection violated article 6. But normally a police officer or legal professional on juries in fine.

6.1

• Fair and public hearing 

- Done in a reasonable time 

- Impartial trial backed by law  

- Result publicly delivered 

6.3 - Special rights for criminal trials  

• Being informed promptly of the allegations  

• Time to prepare a defence  

• Legal aid 

• Ability to examine witnesses  

• An interpreter must be made available when needed 

B & P v UK

The ECHR agreed that in some cases, such as this child custody case, it is justifiable that the trial be carried out away from the public eye to ensure privacy for the family and child involved.  

Secret Trials  Family Law 

This is justified to protect the privacy and identities of those involved in family trial. This is especially important for children as their private family business would become public knowledge before they were at an age where they could consent to or reject this being done.  

Some feel this needs to be changed as openness in the courts guards against corruption and can make life better for those involved in domestic abuse cases. However, huge restrictions on media coverage still exist to protect those involved. It is felt by many that the most vulnerable people would not come to trial if they felt their identity may be compromised by having a media presence and proposals for greater transparency are almost universally rejected. 

National Security 

1. Certain aspects of a case cannot be reported by the press or disclosed to the public  

2. Some evidence is withheld from one party, normally the accused 

This is done in cases where national security or spies would be compromised by a public trial 

Special Immigration Appeals Commission (SIAC) 

This was established in 1997 to make decisions on deportations on national security grounds. For this reason, parts of the case can be secret, evidence can be secret, or the reasons for decisions may only be partially explained. 

 

To navigate this gap a special advocate is appointed having been vetted to ensure they protect the secrets. Once they have seen the evidence they cannot communicate freely with their client, and they may have to challenge evidence without being told of it’s content. 

 

TPIM cases – These also use secret evidence but on instruction fro the ECHR the accused must be goven the ‘gist’ of the accusation against them. 

Closed Material Procedures and the Justice and Security Act 2013 

This introduced secrecy to a wider range of trials where any sensitive material can be considered by the court in a closed session. This is a very controversial development for Uk procedural law. 

In 2014, a trial was applied to be held entirely in secret, but the CoA found this could not happen and the media and public had a right to know at least basic details such as the names of the accused. Article 6 protects public justice as part of a free and fair trial so a balance between the right of the accused to a fair trial and the right of those involved to a private life and the right of the people to public safety must be found.  

R v Incedal

Was proposed to be the first criminal trial held entirely in secret, but the court of appeal rejected this idea. 

Osman v UK

This case was about police protection. C had been harassed and followed by his former maths teacher who had changed his own name to be the same as C’s. Police were told many times about this but did nothing. This case was brought as the police had blanket immunity from civil trials which was against article 6.  

Woolmington v DPP

Innocent until proven guilty

O’Hallaran & Francis v UK

Right not to self-incriminate

R v Twomey

Right to jury can be excluded if there is evidence of tampering